California Gay “Change” Therapy Ban Headed To Appeals Court

California Gov. Jerry Brown has been sued for trying to enforce the new state law banning the use of reparative therapy on minors.Damian Dovarganes / AP

The constitutionality of California’s new law banning mental health professionals from performing “sexual orientation change efforts,” or reparative therapy, on minors reached the Ninth Circuit Court of Appeals on Tuesday, after a pair of rulings on the law reached conflicting conclusions on the question.

A federal judge in Sacramento on Monday temporarily halted the application of the law to three people, two therapists and one person seeking to become a therapist, who sued the state seeking an injunction of the law. A day later, however, another judge in the same federal court denied a temporary injunction in a lawsuit brought by several therapists, parents and minors — a decision that they appealed to the Ninth Circuit the same day.

Judge William Shubb, a George H.W. Bush appointee to the court, issued the Monday decision, finding that the plaintiffs “are likely to prevail on the merits of their claim that [the law] violates their rights to freedom of speech under the First Amendment.” On Tuesday, however, Judge Kimberly Mueller, an Obama appointee, reached the opposite conclusion, finding that “Plaintiff therapists are not likely to prevail on the merits on their First Amendment claim.”

The reasoning, primarily, revolved around what standard the court should use to resolve the claim, whether speech or conduct (or expressive conduct, which is a type of conduct that is intended to convey a message) was at issue. If speech is involved, “strict scrutiny” is applied and the state must show a compelling reason for regulating that speech.

In concluding that the plaintiffs were bringing a legitimate First Amendment claim, Shubb examined the law, shortened to “SOCE,” and found “[w]hen applied to SOCE performed through ‘talk therapy,’ [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys.”

Mueller, however, found that not only was speech not involved but that “the provision of healthcare and other forms of treatment is not expressive conduct.” Specifically, she decided that the plaintiff therapists “have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.”

The rulings — and the appeal to the Ninth Circuit — were only in relation to requests for preliminary injunctions halting the enforcement of the new law while the underlying lawsuits can proceed.

Once Shubb decided the law would regulate the content of therapists’ speech, he applied strict scrutiny to the law and concluded that the state did not prove that compelling interest was met. Specifically, he questioned whether the legislature provided evidence that the therapy would cause harm to minors, writing, “[E]vidence that SOCE ‘may’ cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.”

As such, Shubb halted the law’s application to the three plaintiffs, noting, “California has arguably survived 150 years without this law, and it would be a stretch of reason to conclude that it would suffer significant harm having to wait a few more months to know whether the law is enforceable as against the three plaintiffs in this case.”

Mueller, however, concluded that “SOCE therapy is subject to the state’s legitimate control over the professions.” As such, she ruled, “[The law’s] restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test.” Under the “rational basis” test, the state only needs to show that the government had a legitimate reason for its action. Mueller found such “legitimate reason” in that “stated purpose” of the law, which “is the protection of the ‘physical and psychological well-being of minors.’ … This is more than a ‘legitimate’ interest: it is a significant, if not compelling, interest according to Supreme Court precedent.”

Mueller also rejected claims that the law violated parents’ fundamental rights and minors’ rights.

The National Center for Lesbian Rights has supported the law and opposed both lawsuits on behalf of Equality California.

NCLR executive director Kate Kendell said in a statement issued after Tuesday’s ruling, “We are confident the courts will continue to uphold this life-saving law, which simply requires licensed mental health practitioners to follow professional standards and to refrain from using practices that have no basis in science or medicine.”

Of the Monday decision by Judge Shubb, NCLR’s legal director, Shannon Minter, said he was “disappointed,” but added, “We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients.”